Douglas A. Berman, Professor of Law, Moritz College of Law &
Douglas Dumolt, Class of 2006, Moritz College of Law

Background

Felon disenfranchisement laws strip criminals convicted of certain crimes of their right to vote. Denying criminals the right to vote has been traced back to the Roman era, and the practice was a component of the medieval and colonial tradition of imposing "civil death" on offenders by denying them a range of political and social rights. Laws disenfranchising felons could be found in many states soon after the country's Founding, and the character and consequences of these laws evolved in racially motivated ways after the passage of the Fifteenth Amendment to the U.S. Constitution gave black males the right to vote. Though courts and legislatures have eliminated various other restrictions on voting rights, the disenfranchisement of felons has remained a significant limitation on the ability of a portion of the population to be full participants in the political process.

Current Law in Ohio and Other States

Today, nearly every state has some form of felon disenfranchisement law, although there has never been a national policy with regard to felon voting rights. Indeed, there is a wide spectrum of (still evolving) laws regarding felons' voting eligibility. Over a dozen states - mostly in the south and west - have chosen to permanently bar some or all felons from voting (though ex-offenders may sometimes be able to regain their voting rights through a restoration process). Two states - Vermont and Maine - permit even incarcerated felons to vote. Other states, including Ohio, have disenfranchisement laws that fall between these extremes.

The Ohio Constitution expressly authorizes the Ohio General Assembly "to exclude from the privilege of voting, or of being eligible to office, any person convicted of a felony." 1 But the General Assembly has chosen to prohibit only incarcerated felons from voting; offenders on probation, paroled felons, and all ex-felons are permitted to vote, and the restoration of the franchise occurs automatically once a felon is paroled, pardoned, or granted judicial release. 2 By disenfranchising felons only while they are imprisoned, Ohio maintains one of the least restrictive felon disenfranchisement policies in the nation. Thirty-five states prohibit felons from voting while they are on parole, and 31 of these states exclude felony probationers as well. 3

Significant attention and grassroots advocacy has recently been focused on the law and impact of felon disenfranchisement. This activity has prompted a number of states to change their felon disenfranchisement laws in the last decade; most recent reforms have allowed more ex-offenders to vote, though a few states have made their voting eligibility rules for felons more restrictive. 4

Impact of Felon Disenfranchisement Laws

Various analyses by public policy groups and researches have estimated that nearly five million (5,000,000) Americans currently lack the right to vote as a result of a felony conviction. Of this number, 1.4 million are African American men, and nearly 700,000 are women. An estimated 1.7 million disenfranchised persons are ex-offenders who have completed their sentences.

Notably, the state of Florida, which permanently disenfranchises felons, had an estimated 600,000 ex-felons who had completed their sentences and yet were unable to vote in the 2000 presidential election. Recall that a few hundred votes decided which presidential candidate prevailed in Florida and thus in the national election. Some researchers have suggested that the outcome in the 2000 presidential election would have been different if Florida's disenfranchisement laws were less restrictive of felon's right to vote.

Many advocacy groups and researchers have noted and lamented that the impact of disenfranchisement laws are especially severe on minority communities. Though African Americans comprise approximately 12% of the United States' population, they comprise roughly one third of the total disenfranchised population. In some states that permanently disenfranchise all felons, more than 25% of all black men have lost the right to vote. And though the statistics are not as dramatic, research suggests that Latinos are also significantly over-represented in the population of disenfranchised persons.

Legal Challenges to Felon Disenfranchisement Laws

Because of the moderate nature of Ohio's felon disenfranchisement laws, there has been relatively little criticism and no formal legal challenges to Ohio's policy of prohibiting incarcerated felons from voting. However, a broad array of human rights groups, public policy activists and legal academics have focused their energies on criticizing and challenging the more restrictive and severe felon disenfranchisement laws that are in place in many states.

Court challenges to state disenfranchisement laws typically advance two basic types of claims: they assert violations of the United States Constitution or allege violations of section 2 of the Voting Rights Act (VRA). Plaintiffs have historically won very few challenges to disenfranchisement laws in court, although some recent decisions have energized the efforts of lawyers seeking to end significant restrictions on felon's voting rights.

Constitutional challenges - Though courts considering constitutional challenges to limits on voting rights typically apply so-called "strict scrutiny," the Supreme Court in 1974 ruled in Richardson v. Ramirez 5 that the Equal Protection Clause of the U.S. Constitution does not require states to advance a compelling interest before denying the vote to citizens convicted of crimes. The Court pointed to Section 2 of the Fourteenth Amendment - which reduces a state's representation in Congress if the state has denied the right to vote for any reason "except for participation in rebellion, or other crime" - in concluding that felon disfranchisement laws should not be subject to the heightened scrutiny given to other restrictions on the right to vote. In other words, because the Fourteenth Amendment specifically contemplates that states may deny otherwise qualified citizens the right to vote because they have committed a crime, the Supreme Court determined that it would be inappropriate to interpret the Equal Protection Clause (which is also contained within the Fourteenth Amendment) as constraining the authority of states to disenfranchise voters on account of a criminal conviction. Thirty years latter, Richardson v. Ramirez remains a leading precedent that courts use to reject constitutional challenges to disfranchisement laws, although later decisions have clarified that disfranchisement laws enacted intentionally to discriminate on account of race can violate the equal protection clause and that the unequal enforcement of disfranchisement laws can also be unconstitutional. 6

Statutory challenge based on the VRA - Section 2 of the Voting Rights Act prohibits voting practices that result in a denial of the right to vote on account of race; it provides, following an amendment by Congress in 1982, that no state shall impose any "voting qualification or prerequisite to voting or standard, practice or procedure ... which results in a denial or an abridgement of the right of any citizen of the United States to vote on account of race or color." 7 Claims based on the VRA have had more success than those based on the Constitution in part because a plaintiff relying on the VRA need not show that the state intended to discriminate against minority voters, but only must establish that, based on all of the relevant circumstances, the impact or result of the challenged voting practice is discriminatory. However, a series of challenges to state felon disenfranchisement laws on the basis of the VRA has resulted in split circuit court rulings. The Ninth and Eleventh Circuit Courts of Appeal have held that a plain text reading compels application of the VRA to felon disenfranchisement laws, 8 while the Second, Third, Fifth, and Sixth Circuits have either rejected or expressed criticism of this position because of the lack of a clear statement from Congress. 9 The State of Washington has sought Supreme Court review of the Ninth Circuit decision, invoking the conflict between that decision and those from the other circuits, and noting also that the panel's opinion provoked a significant dissent within the Ninth Circuit itself. 10 Given the increased attention and advocacy efforts focused on challenges to felon disenfranchisement laws, it seems likely that Supreme Court will before long speak to the applicability of the VRA to felon disenfranchisement laws.

Felony Disenfranchisement Resources/Links

The Sentencing Project, a non-profit organization which promotes reduced reliance on incarceration and increased use of more effective and humane alternatives to deal with crime, has created and assembled an array of informative materials on felony disenfranchisement. The Sentencing Project website, at http://www.sentencingproject.org/pubs_05.cfm, includes a host of reports, briefing materials and policy papers, most of which are highly critical of felony disenfranchisement laws and policies.

Right to Vote, a campaign which seeks to broaden national public discussion of disfranchisement through media and communications, impact litigation and scholarship, has a website, at http://www.righttovote.org/index.asp, that provides the most complete and comprehensive resource regarding felony disenfranchisement available on the Internet. This site is dedicated to eliminating all forms of felony disenfranchisement and is involved in various cases currently being litigated on this subject. Their site includes information about felony disenfranchisement around the United States, a synopsis of relevant legal decisions, information on pending litigation, and information on how to organize issue advocacy.

The Brennan Center for Justice has a Voting & Representation project that promotes policies that protect rights to equal electoral access and political participation. As part of that goal, the Center has complied extensive information of a variety of voting issues, including a limited but useful discussion of felony disenfranchisement in the United States. Their website, at http://www.brennancenter.org/programs/programs_dem_votrep.html, includes links to relevant pending cases and recently decided cases that affect voting rights as well as a variety of Op-ed pieces and press releases.

The Advancement Project, a democracy and justice action group, has a publication designed to provide former felons with guidance in navigating through the complex technicalities and procedural requirements involved in various state restoration processes. This publication, available at http://www.advancementproject.org/Re-En.pdf, starts with a brief history of felony disenfranchisement and a highly critical discussion of its current implications and then provides relatively extensive instructions on how a convicted felon can have his or her right to vote restored in the thirteen states where this does not occur automatically.

A website at http://www.demos-usa.org/page15.cfm created by Demos, a group working to promote a broad agenda of democracy reforms, includes a variety of resources focused particularly on felony re-enfranchisement. The site includes resources for organizing state-based initiatives, instructions on how to get one's right to vote back after disenfranchisement, links to other groups advocating an end to felony disenfranchisement, and pdf versions of a variety of academic articles critical of felony disenfranchisement.

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